Academic Legal Writing - Eugene Volokh [102]
[¶ 8] This Note will depart from the traditional, theoretical approach to the Free Exercise Clause, and examine the lower court cases as well as the Supreme Court cases in which the clause has been invoked. In so doing, it will argue that enacting the RFRA in order to reestablish the compelling interest test is a largely futile endeavor. To be sure, the vehement reaction to Smith among academics and interest groups is understandable and justifiable. The decision is a regrettable departure from a doctrine that at least purported to value and protect religious liberty. Nevertheless, the current efforts to overturn that decision through passage of the RFRA are misguided. Despite the obvious change Smith brought to the language of free exercise doctrine, the impact of the decision on the outcome of free exercise cases will likely be insignificant.
[¶ 9] There are three reasons why this is so. The first and most obvious is the decision itself: it contains several caveats that can readily be used to limit the scope of the holding.32 The second is that the free exercise claimant, both in the Supreme Court and the courts of appeals, rarely succeeded under the compelling interest test, despite some powerful claims. A survey of the decisions in the United States courts of appeals over the ten years preceding Smith reveals that, despite the apparent protection afforded claimants by the language of the compelling interest test, courts overwhelmingly sided with the government when applying that test.33
[¶ 10] Finally, Smith may have little lasting impact because religious groups experience relative success in the political arena. Exemptions for religious groups already exist in numerous state and federal statutes. Numerous religious antidiscrimination statutes are also already in place. Indeed, many of the “free exercise” cases in the courts of appeals involved determining whether a particular individual or religious group fit within an extant statutory exemption. To the extent that religious groups are able to form coalitions,37 there is little reason to think that they will not continue to achieve political victories.
[¶ 11] In short, the evidence demonstrates that faith in the courts in this area is misplaced, and that religious groups and individuals fared better in the legislatures than in the courts before the Smith decision. Indeed, perhaps the most lasting and helpful legacy of the case will be that it finally dispelled the mistaken notion that courts were the leading institutional protectors of religious liberty.
[¶ 12] This Note will begin by briefly examining the rise and fall of the compelling interest test in the Supreme Court, and will demonstrate that the Court had begun to dismantle and disable that test almost immediately after it was established. Part II will discuss the free exercise claims brought in the U.S. courts of appeals in the ten years that preceded Smith. Dividing the cases into three categories—losing cases, winning cases, and prisoners' cases—this Section will attempt to discern why most cases were decided against claimants, and whether the few that were decided in their favor would be decided differently after Smith. Part III will discuss the Religious Freedom Restoration Act in the larger context of possible responses to Smith by those interested in preserving religious liberty. It will be suggested that of the various options available, ignoring the decision to the (not insignificant) extent that it can be ignored, while simultaneously focusing on the legislative arena to secure statutory protections, is the most promising. This Note will conclude by suggesting that religious groups pursue a strategy to secure broadly based exemptions within pending legislation and to then rely on the courts to recognize the inclusion of a particular individual or religious group within those exemptions. This strategy should ensure, to the maximum extent possible, the protection of minority as well as majority religious groups.
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